April 2023

Oct 13, 2023

Click the link to read the article on the Sibley's Rivers website (George Sibley):

As you no doubt already know, if you follow Colorado River news, the Bureau of Reclamation and Department of Interior have issued a ‘Near-term Colorado River Operations: Supplemental Environmental Impact Statement’ (SEIS) analyzing two alternatives for making massive cuts in the consumptive use of the Colorado River's waters, beginning in 2024. The SEIS analyzes strategies for cutting use by two million-acre feet (maf) next year, with cuts up to four maf in following years if the water supply in storage continues to decline – roughly a third of the total volume of the river as it has run since the turn of the century.

​The alternatives discussed in the SEIS will look familiar to those who have followed the river news for the past couple months; they are similar to the plans for large reductions created by the seven River Basin states: one plan by six of the states, the other by the seventh, California. One of the Bureau's ‘action alternatives’ divides the big cuts equitably among the three states based on the size of their allotments, like the six states’ plan; the other adheres mostly to priority of water rights in dishing out the cuts, like the California plan.

If there is anything to be learned for the future from the past, it should be noted now that this sudden dramatic need for really major cuts in consumptive use in the lower part of the river basin is the consequence of problems that could have been dealt with gradually – intelligently, one might say, far-sightedly – over at least the past 30 years, if not the whole last century since the discovery that the Colorado River Compact was based on false numbers.

​But through the 1940s and 50s, there was a lovely sense of abundant water in the Lower Basin. The four states of the Upper Basin were considerably slower in developing than the three in the Lower Basin, so a lot of the river was still flowing freely to the desert states below the canyons and eventually being ‘wasted’ to the ocean, then regarded as a sad end for freshwater.

​Even before Hoover Dam was completed, the Californians, with Bureau permission, decided to borrow some of that water to grow on – with really no firm plan about what to do when the Upper Basin developed its water. They did not really know how much (or how little) water the river really carried, and the spirit of the times decreed that the engineers would figure something out to solve the problems of the future. California's 1931 ‘Seven Parties Agreement’ divvied up more than 900,000 af of borrowed water – and built their permanent systems large enough to carry that along with their legal allotment.

The Lower Basin states were also, kind of semiconsciously, depending on that ‘surplus’ water to cover all of the substantial ‘system losses’ in the Lower Basin – evaporation and conveyance losses – and also the Lower Basin's 750,000 af share of the commitment to Mexico: all told, at least 2 maf of water for which the Lower Basin states were accountable, but none of which was deducted from their allotments as set by the Boulder Canyon Project Act. They developed their 7.5 maf Compact allotment to the max, and this ambiguous but very real 2 maf became known as ‘a structural deficit,’ as though it were just inherent in the structure of the system and nothing could be done about it, not unlike an Act of God.

​But the Upper Basin states eventually got up to around 4 maf of consumptive use (including Upper Basina system losses) late in the century, with big out-of-basin projects like the Colorado-Big Thompson, San Juan-Chama, Dillion Reservoir, Homestake, and Arizona's big Central Arizona Project came on line in 1993 – and everyone knew by then how little water the river actually carried, with no big river augmentation projects on the horizon…. Common sense would seem to dictate that, at least by the 1990s, the Californians would have begun a schedule for weaning themselves from the borrowed water, and all three Lower Basin states would have begun figuring out how to deal with the ‘structural deficit.’ But that kind of sense was of course completely contrary to the naive energies of the Early Anthropocene that still prevailed in the Basin, and the Lower Basin states – graciously enabled by the Bureau – continued using consumptively somewhere around 800,000 af of borrowed Upper Basin water in addition to their full 7.5 maf Compact allotments, and ignoring any responsibility for the 2 maf structural deficit.

​The water, by then, was no longer flowing freely through the canyons to the Lower Basin, but was being released by the Bureau from Powell Reservoir, requiring some complex definitions of ‘surplus’ – possibly trying to disguise its decline – and some big water years in the 1980s and 90s allowed them to continue to cover the profligate release of more than 10 maf to cover Lower Basin's legal allotments, plus borrowings, plus ignored system losses.

But the climate and the river turned against them with the turn of the century. For the five water years 2000-2004, inflows into Powell Reservoir averaged a measly 6 maf, less than two-thirds the 20th-century average inflows. Meanwhile, however, the Bureau continued to release more than 8 maf annually from Powell to Mead, and then the usual Compact allocation plus borrowings from Mead to the desert states with no accounting for the system losses: basically, 6 maf in, and 10+ maf out of the system. Predictably enough, storage took a dive in both reservoirs, and everyone realized that something different needed to be done soon.

​The first thing done was in 2003; Interior Secretary Gale Norton, mustered the gumption to tell California that it was time to stop borrowing no-longer-existing surplus water. To the surprise of all the Caliphobics, California complied, and began to work its way back to its 4.4 maf allotment. But nothing was said then about the ‘structural deficit,’ so between their full consumptive use of their 7.5 maf Compact allotment, and the 2 maf of system losses and Mexican obligations for which they continued to decline responsibility, the Lower Basin states were still consuming between nine and ten million acre-feet annually; storage was still declining and something really different still needed to be done.

For two years representatives from the seven states and other stakeholders met with the Bureau, to address that need, and the result was a 2007 agreement called ‘Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead.’ This was essentially an attempt to try out some ideas for more carefully coordinating the use of the two big reservoirs while encouraging Lower Basin users to cut their use and leave some of their water in Mead (‘Intentionally Created Surpluses), making it possible to draw less from Powell. The ‘interim’ for these temporary guidelines was the 20 years to 2026, at which time, according to plan or hope, the Bureau and the seven states would have developed a new longterm management regime that actually incorporated the realities of a desert river.

​The Interim Guidelines rely on a ‘balancing’ of the water in the two reservoirs, to keep both reservoir levels high enough so the generation of electric power can continue – an elevation of 3,490 feet (above sea level) for Powell Reservoir and 1,000 feet for Mead Reservoir. And if that proved to be impossible in an extended period of aridification, then the last-ditch effort would be to keep levels above each reservoir's outlet works – an elevation of 3,370 feet in Powell and 895 feet in Mead. If the reservoirs fell below those outlet levels for either dam, then it would be impossible to convey any water at all beyond the dam. Dead pool.

A complex table of ‘Lake Powell Operational Tiers’ is the heart of the Interim Guidelines, defining the various levels at which releases from Powell should increase or decrease depending on both the level in Powell and how the level in Mead was increasing or (generally) decreasing. And if levels continued to decline (which they have), the grinding gut of the Interim Guidelines is a set of ‘shortage conditions’ – levels at which delivery cuts will be imposed on the Lower Basin states. In 2022, the Bureau finally acknowledged the reality of the situation and declared the first level of cuts, on Arizona and Nevada.

​Why not California too? More history: Back in 1968, when Arizona was lobbying desperately for approval of the legislation that would finally enable the CAP, California had said that it would only support the project if Arizona would accept a junior status for the CAP to all of California's Colorado River water rights. For Arizona, even in the late 1960s, that seemed like a gamble worth taking; who could imagine water shortages that might shut down Hoover Dam and the vast array of urban-industrial development it watered? So the Arizonans agreed to California's condition – and half a century later the unimaginable happened.

But California did not entirely employ the Shylock gambit; they reluctantly agreed in a neighborly way to accept some Interim Guideline cuts before Central Arizona was completely dried up; their cuts begin at about the fourth level of escalating cuts for Arizona and Nevada.

​Everywhere in the Colorado River region today, it is entirely too easy to get lost in the numbers, all those abstract thousands and millions of acre-feet. Suffice it to say for now that under the Interim Guidelines, by the time the balanced levels of Powell and Mead Reservoirs dropped to within 30-40 feet of the power generation cutoff levels, central Arizona would be giving up 720,000 af, Nevada 30,000 af, and California 350,000 af, for a total of 1.1 maf. Substantial pain – but only about half of the 2 maf structural deficit, the number to keep in mind for this unfolding melodrama. Because there is simply no way, short of constant climate miracles, to avoid an eventual dead-pool situation if the Lower Basin continues ignoring the structural deficit, with inflows to Powell way below the outflows plus system losses from the Lower Basin storage and distribution systems.

What about the Upper Basin states? They get a bye on this round. For one thing, the federal government does not control their water supply, nature does; and they are also way under their 7.5 maf Compact allotment. Also since the beginning of the drought period, the Bureau had already let more than 10 maf of ‘their’ water flow down to Mead above and beyond the Compact requirement. They also have no ‘structural deficit’; their usage includes their system losses – although the half-million acre-feet, plus or minus, evaporated out of Powell should probably be included in the unaccounted-for reservoir system losses since it occurs after the measured inflow. But people in the Upper Basin know their opportunity to participate in the reductions will come.

Even as the first level of shortages was being executed on Arizona and Nevada in 2022 (with the second level promised for this year), Powell was in its third consecutive year of inflows of 6 maf or less with outflows and system losses from Mead still in excess of 9 maf, and the Bureau realized that even the Interim Guidelines reductions might not get them all the way to 2026. Facing that, the Bureau and Interior Secretary issued a somewhat desperate announcement that it would be necessary to quickly implement much heavier cuts – at least two and maybe four million acre-feet. The Bureau Director and Interior Secretary asked the seven states to come up with a plan for how that might happen – and said that if the states did not come up with a plan, they would impose one of their own.

​They actually said this twice, midsummer in 2022, and midwinter in 2023; the first time I think the states were too stunned to respond, and no plans emerged from either the states or the Bureau. But now, after the second call, there are four alternatives on the table, two from the states and two from the Bureau. Two of these alternatives argue for using the foundational ‘Law of the River,’ the appropriation doctrine, to distribute the necessary cuts; a big faction (mostly those with senior water rights) believes appropriations law can and should resolve every issue involving water in the arid West.

The other two alternatives seem to see the 2 maf structural deficit as a foundational mistake that needs to be corrected outside or below the rules governing the use of the river's water; the structural deficit is water that isn't there to use, and therefore shouldn't be dealt with through the laws for the use of water. It thus makes the most sense to share those ‘structural’ losses out proportionally among the three states rather than trying to apply the use-allocation law to them.

​It is clear enough that the resolution will have to involve a middle ground, similar to that arrived at in the Interim Guidelines, when California's priority was acknowledged but the state conceded to take some cuts before completely drying up the CAP. The Bureau's second alternative comes closest to seeking that middle ground. If it were implemented, that accommodation to seniority would be carried forward with reduced assessments to California despite their use of more than half the Lower Basin's water. In getting to the 2.083 maf goal, Arizona would take the hardest hit (1.087 maf), more than a third of their 2.8 maf allotment; and California would lose 927,000 af, only a fifth of their 4.4 maf allotment. Nevada would lose 69,000 af, about a fourth of their 300,000 af allotment.

Ultimately something along those lines has to sound better to California than going to court on principle for the usual decade, and driving the river into a dead-pool status under which they would get no water at all much of the year. Laws that can't bend or open up to fit changing situations eventually break under the stress.

​And then – well, the 20-year interim period for the water mavens to figure out what to do for the next century has shrunk to three years. And the last I heard, they are still trying to figure out who does and doesn't get to sit at the table to figure it out the future.

​The Bureau encourages comments on the SEIS, by May 30: [email protected].